In Bow to Industry, EPA Rule Hurts Water Quality, Human Health and Wildlife Across Country

WASHINGTON, D.C.— Conservation groups filed a lawsuit today challenging last-minute exemptions for industries in the new “waters of the United States” rule that could open the door to more pollution of wetlands, streams and other waterways. The rule, finalized in May by the Environmental Protection Agency and U.S. Army Corps of Engineers, defines which waterways can be protected against being destroyed, degraded, or polluted without a permit under the Clean Water Act.

The new rule reaffirms longstanding federal protections for some types of waters, but largely as a result of industry pressure, arbitrarily exempts and removes safeguards for critically important streams, wetlands and other waterways, many of which had been protected since the 1970s. These unprecedented exemptions are contrary to clear scientific evidence demonstrating the importance of these waterways for drinking water, recreation, fisheries and wildlife.“Communities deserve the broadest protection of waters consistent with sound science,” said Marc Yaggi, executive director at Waterkeeper Alliance. “We need to advocate for the strongest rule possible so that we move forward in restoring our nation’s waters by controlling the discharge of pollutants into the smaller tributaries that feed into them.” Under the new rule, wetlands, ponds and other small water bodies can only be protected if they are within 4,000 feet of a stream or river. However, if a wetland is just one foot over the arbitrary 4,000-foot line, it cannot be protected — even if it is vitally important in preserving downstream water quality. In their drive to placate industry interests, the EPA and Army Corps of Engineers' failed to ensure that these types of exemptions do not jeopardize the survival of hundreds of endangered species as required by the Endangered Species Act. Endangered salmon and sturgeon on both coasts, California red-legged frogs, and bog turtles are among the many species that depend on clean, unpolluted water and will be harmed by the exemptions created by this rule.

“Freshwater species in the United States are already going extinct hundreds of times faster than terrestrial species, and these loopholes will make survival even harder for them,” said Brett Hartl, endangered species policy director at the Center for Biological Diversity. “There’s no question that eliminating protection for thousands of wetlands waters will hurt people and wildlife for generations to come.”

In another last-minute concession to industry, the agencies substantially weakened Clean Water Act protections for streams, wetlands and ponds that are adjacent to streams and rivers if those water bodies are currently used in farming, ranching or silviculture activities. Contrary to science and the requirements of the law, the final rule categorically reduced protections for tributary streams, wetlands, streams that have been ditched or channelized, and for water bodies that are only connected to protected downstream waters by subsurface water flows.

“This rule change will weaken protection for waterways on and near big agribusiness operations, likely resulting in more agricultural pollutants on our food and in our environment,” said Adam Keats, senior attorney at the Center for Food Safety. “The EPA and the Army Corps should be working to strengthen, not gut, the laws that keep industrial agricultural pollution in check.”

Despite these unprecedented concessions to industry, opponents of the final rule have mounted a massive misinformation campaign claiming the agencies are expanding the jurisdiction of the Clean Water Act. In reality, the EPA and the Corps have improperly relinquished jurisdiction over historically protected waters and admit that: “The scope of jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries."

“Our national heritage of fish and wildlife depends on strong protections in our nation's water,” said Joanna Nasar, of the Turtle Island Restoration Network. “It is critical that our strongest protections extend to the ephemeral streams, ditches and wetlands to protect our endangered species like coho salmon, freshwater shrimp, or red legged frogs from polluters, so that future generations can inherit the same natural wonders we did."

SANDPOINT — Lake Pend Oreille Waterkeeper has joined a nationwide coalition of environmental groups in a lawsuit challenging the U.S. Environmental Protection Agency’s Industrial Stormwater Permit, according to a news release.The permit, known formerly as the Multi Sector General Permit for Stormwater Discharges Associated with Industrial Activity, regulates stormwater runnoff across the country. That runoff is one of the biggest and most harmful sources of pollution in our waterways, according to Lake Pend Oreille Waterkeepter executive director Shannon Williamson.When rain falls on industrial facilities such as cement plants, scrapyards, or truck depots, it picks up pollution caused by industrial activity and carries it into waterways, which often serve as drinking water sources.Industrial stormwater often contains a mix of environmentally damaging and toxic pollutants including sediments, oil; metals such as arsenic, lead, zinc, and copper; and persistent toxins such as mercury and PCBs, or polychlorinated biphenyls, the press release said.For the rest of the story, see the print edition of the Bonner County Daily Bee or subscribe to our e-edition.

Summer is here! This is the time when the great outdoors beckons, and we can’t wait to get out to the rivers of the American West to raft, fish, swim and just cool off. But unfortunately, the water we all enjoy has just become imperiled by the Obama administration’s Environmental Protection Agency.Though the EPA’s new “Clean Water Rule” updates the 43-year-old Clean Water Act, it fails to help Westerners because it is too weak to protect our region’s lakes, rivers and streams. The rule was the product of an EPA-appointed, 52-member Science Advisory Board, which reviewed and made use of 1,200 scientific articles on protecting rivers, lakes, and streams across America. However, the EPA ignored part of the board’s advice on key areas of concern to Westerners.Obama’s new rule leaves thousands of mountain streams in the mountainous West and arid Southwest more vulnerable to pollution. It decreases the number and amount of rivers and water protected, contains significant new exemptions and loopholes for corporate polluters, and lacks the clarity needed to prevent the case-by-case determinations that have exposed Americans to polluted waterways nationwide.First and most important for Westerners, Obama’s new rule did not adopt the Science Advisory Board’s recommendation to include language about what defines a “tributary” and a “perennial, intermittent, or ephemeral stream.” In a semi-arid environment like the Southwest, the majority of streams in the mountains and across the plains only flow intermittently during the late spring and summer, after the snow melts. But it’s extremely important to protect these ephemeral streams because they flow into (are “tributary” to) the year-round flowing rivers and streams across the state.Unfortunately, the rule states that “the agencies did not make this (rule) change” for “ephemeral streams with arid and semi-arid environments.” That means many streams in the Western United States will remain in limbo: Are they, or are they not, protected by the Clean Water Act? This might well result in more case-by-case determinations and lengthy delays as the courts get to decide what is a stream and what is not.Second, the new rule clearly and emphatically states that fewer miles of streams and less water are now protected than under the previous Clean Water Act regulation. In fact, the rule’s preamble says: “The scope of jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.” This narrowing will certainly cause more of the West’s streams to lose protection.Finally, the new rule contains several new exemptions and loopholes that may allow corporate polluters to further degrade America’s waterways. New exemptions and loopholes now exist for the factory farm and the fossil-fuel industries. The rule states: “The agencies for the first time also establish by rule that certain ditches are excluded from jurisdiction. …” The type of ditches described in the exclusion are those that can flow intermittently from factory farms and fracking sites and end up in our waterways in the West.These exemptions may make some problems dramatically worse. This is just one example out of hundreds of examples across the West: At the confluence of the Cache la Poudre and South Platte rivers in Colorado, there sits a massive feedlot almost a square mile in size. A ditch runs out of that feedlot directly into the South Platte River. Now, thanks to the EPA’s new rule, it is not certain how the ditch will be defined. If the EPA’s new rule decides that it’s ephemeral, it will not be protected by the Clean Water Act.It is known that as the South Platte River heads toward Nebraska, it is filled with pollution from fertilizers and pesticides, making the river a significant contributor to the 5,000-square-mile “dead zone” of nitrates in the Gulf of Mexico.President Obama had a huge opportunity to protect the West’s water from corporate polluters and make sure every waterway is drinkable, swimmable and fishable. Unfortunately, his administration’s new clean water rule weakens protections for our waters and creates new categorical exemptions and definitional requirements that are more likely to lead to more litigation in our courtrooms rather than cleaner water in our lakes, rivers and streams.

Find the original article here.■Gary Wockner is a contributor to Writers on the Range, a column service of High Country News (hcn.org). He is the waterkeeper for the Cache la Poudre River of northern Colorado.

Challenge vague limits that will be ineffective in controlling discharge of pollution from many industrial facilities into nation’s waterways

New York, NY – July 7, 2015 – A coalition of environmental groups have filed a lawsuit (Exhibit A, Exhibit B) challenging the U.S. Environmental Protection Agency’s Industrial Stormwater Permit, formally known as the Multi Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP). The nationwide coalition includes Waterkeeper Alliance, headquartered in New York City, Conservation Law Foundation, headquartered in Boston, the Ecological Rights Foundation and Our Children’s Earth Foundation, which are both based in California, Idaho’s Lake Pend Oreille Waterkeeper, and the Puget Soundkeeper Alliance, from Washington State.

EPA’s industrial stormwater permit regulates stormwater pollution in states that have not been delegated Clean Water Act permitting authority, at federal facilities and on tribal lands. In addition, EPA’s permit often sets the bar for delegated states when they write their own permits, and thus serves as a model for permits that govern tens to hundreds of thousands of industrial stormwater discharges across the country.

There are serious deficiencies in EPA’s industrial stormwater permit that, unless corrected, will allow polluters to continue to discharge unreasonably high levels of toxins, metals, and other pollutants into our waterways—and these deficiencies are illegal. Key failures include:

The permit lacks numeric effluent limits – clear, easily enforced limits on the amount of pollution that an industry can discharge. Numeric limits are feasible and required by the Clean Water Act.EPA does not require industrial stormwater polluters to monitor for many pollutants that they commonly discharge. The National Research Council, which is part of the National Academies of Sciences, Engineering, and Medicine, has identified “glaring deficiencies” in the list of pollutants that EPA asks industrial stormwater polluters to monitor. And the Permit fails to provide any means for using the limited data generated for evaluating impacts to receiving waters.The industrial stormwater permit limits both meaningful government oversight and the public’s right to act as guardians of our waterways. The permit gives polluters automatic coverage in thirty days – even if EPA did not review their application materials or their plans to prevent stormwater pollution. The permit also denies the public any opportunity to comment on or seek a hearing regarding a polluter’s application. Even polluters with bad track records, glaring problems in their application, and sub-standard pollution prevention plans can get automatic coverage under this permit without scrutiny.“We are deeply disappointed with EPA’s failure to set numeric limits in this permit after spending so much time and effort to bring ‘Big Data’ to the world of water pollution,” said Reed Super, lawyer for Waterkeeper Alliance. “EPA worked with states to develop electronic water pollution records, then it linked those records together into a national system. Today, EPA can draw on hundreds of thousands of data points collected by polluters across the country, in every line of business, to set clear, achievable pollution limits for industrial stormwater. But EPA didn’t even consider trying to set clear, numeric limits.”

Across the country, stormwater runoff is one of the biggest and most harmful sources of pollution in our waterways. When rain falls on sites like cement plants, scrapyards, or truck depots, it picks up pollution caused by industrial activity and carries it into waterways, including drinking water sources. Industrial stormwater often contains a mix of environmentally damaging and toxic pollutants including: sediments; oil; metals such as arsenic, lead, zinc, and copper; and persistent toxins such as mercury, PCBs (polychlorinated biphenyls), and PAHs (polycyclic aromatic hydrocarbons).

“This permit influences standards around the country to regulate discharges of polluted stormwater runoff. It has the power to vastly improve controls that protect water quality in places like Puget Sound, where stormwater is the single-largest source of toxic chemicals,” said Chris Wilke, Puget Soundkeeper. “Puget Sound is experiencing record low populations of salmon, human health advisories for fish and shellfish, and other grave indicators of pollution consequences. We are taking a stand because our waterways need stronger protections for the sake of marine life and for people who have a right to swimmable, fishable waters.”